Dealing with Disputes

17 July 2020

In bodies corporate it is inevitable that, from time to time, disputes will occur. Fortunately, in Queensland there are numerous cost-effective avenues available to assist in resolving them.

The OCBCCM

The forum within which most disputes go for resolution is the Office of the Commissioner for Body Corporate and Community Management (OCBCCM). The OCBCCM has exclusive and sole jurisdiction to mediate and (if mediation is unsuccessful) adjudicate upon the vast majority of disputes which arise between bodies corporate, committees, lot owners and occupants.

Pathway to Resolution

The three methods by which a dispute is ordinarily resolved are:
1. Self-resolution
2. Conciliation
3. Adjudication

We discuss the 3 methods below. However it is important to note that some outcomes achieved by self-resolution and private conciliation/mediation processes do not result in binding outcomes and may cost more than using experts appointed by the OCBCCM.

Self-Resolution

Self-resolution is where parties attempt to resolve the matter prior to referring the matter to the OCBCCM. It is important to note that prior to accepting a matter for conciliation or adjudication, the OCBCCM will require evidence that the parties have made genuine attempts at self-resolution.

There is no clear guidance on what constitutes self-resolution, however an aggrieved party should consider:

If the matter is a dispute between lot owners address correspondence to the offending owner outlining the concerns and proposing a solution. If the offending owner is unreceptive, or it is an issue with the body corporate directly, the aggrieved owner may write to the body corporate committee by way of the secretary and request they resolve the dispute.

If the committee is unable to assist to the aggrieved owner’s satisfaction, the owner may propose a motion to the body corporate for resolution in the manner contemplated by the applicable regulation module.

Conciliation

If a body corporate dispute is unable to be resolved via self-resolution, the next step (if appropriate) is referring the matter to conciliation. Conciliation is an intermediary process where parties attend a meeting assisted by a conciliator with the remit of resolving the dispute in a manner agreeable to both parties. Conciliation is a form of mediation or alternate dispute resolution.

A conciliator is an independent person employed by the Department of Justice and Attorney General who understands body corporate law and whose services are provided free of charge.

Conciliation facilitates the parties reaching a mutual agreement as contrasted with later processes where a binding decision is made and imposed on the parties.

Conciliation provides an excellent opportunity for parties to resolve their disputes at a minimum of cost. At the time of writing, the costs of an application for Conciliation were below $100.00.

However, conciliation can only be effective where both parties are willing to compromise. If the other party to a dispute has demonstrated a refusal to compromise, conciliation may not be effective in which case proceeding to adjudication may be a better option.

Similarly, some matters are simply unsuited to conciliation. For example, disputes about the validity of a general meeting resolution or which require urgent interim orders to maintain the
status quo, will ordinarily be unsuited to conciliation.

Adjudication

If the dispute is unable to be resolved via self-resolution or conciliation, the matter can be referred for adjudication.

Adjudication is a quasi-judicial process of the OCBCCM where parties are required to make submissions regarding their positions. Adjudicators are appropriately qualified persons who make decisions and orders with respect to matters brought to them by considering the submissions of parties, applicable legislation and principles established by previous cases.

But for very limited circumstances, parties do not attend an adjudication physically, submissions are made in writing to the OCBCCM for consideration and provided to other parties. Parties can have an order made in their favour or against them on the basis of material provided.

As distinct from conciliation and self-resolution, an adjudication is an enforceable decision at law.

Given the potential outcomes of adjudications, Solicitors are regularly engaged to prepare submissions of behalf of applicants and respondents. However, this is not always necessary.

Again, the only cost for adjudication is the filing fee which as at the time of writing was:

$176.00 for matters requiring interim orders (and final orders) ; and

$83.80 for matters that require only final orders.

The costs of the adjudicator are all covered by that fee.


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